Practices

On November 20, 2014, President Obama announced a series of executive actions designed to improve the United States immigration system. President Obama’s actions constitute the most sweeping immigration reform in decades.

How do President Obama's actions impact business immigration?

The executive actions will make the following changes to business immigration processes:

Modernizing the PERM Program: The Department of Labor (DOL) will review the PERM labor certification program that employers use to sponsor employees for green cards and related regulations and will act to modernize the program.

Expansion of Optional Practical Training (OPT): Currently, an F-1 student in the United States can receive OPT for 12 months to work for an employer in a field directly related to his field of study. An F-1 student who receives a degree in a Science, Technology, Engineering or Mathematics (STEM) field that is included on a designated list, works for an employer that uses E-Verify, and possesses OPT based on a STEM degree can obtain a 17 month OPT extension for a total of 29 months. The Department of Homeland Security (DHS) will propose changes to expand the fields of study eligible for STEM extensions, extend OPT time for STEM graduates, and strengthen relationships between schools and students during the OPT period to ensure that OPT truly furthers a student’s course of study. Other changes are under consideration.

Employment Authorization for Certain H-4 Spouses: In May 2014, DHS issued a proposed regulation that would grant employment authorization to certain H-4 spouses of H-1B nonimmigrants who are in the process of seeking lawful permanent resident status through their employment. DHS will likely finalize this proposed regulation in December 2014 or January 2015.

Guidance on “Specialized Knowledge” in L-1B Cases: Existing regulations do not contain a clear definition of the “specialized knowledge” required for L-1Bs who transfer from a company’s foreign office to its United States office. As a result, adjudicators have used broad discretion when reviewing these cases, resulting in harsh and inconsistent adjudications. DHS will provide clear guidance on the definition of “specialized knowledge” to bring greater clarity to the program and improve consistency in adjudications.

Modernizing the Employment-Based Immigrant Visa System to Make Optimal Use of Available Visas: The current employment-based immigrant system relies on relatively low numerical limits established 24 years ago. The government can issue only a certain number of immigrant visas each year, resulting in backlogs for certain individuals seeking lawful permanent resident status. A Presidential Memorandum will direct agencies to investigate modernizing the visa system to make optimal use of the numbers of visas available by law.

Guidance on “Same or Similar” for I-485 Portability Cases: A foreign national with a pending I-485 application for permanant resident status can change jobs or employers when, among other things, the new employment is in the “same or similar” occupational classification. Uncertainty around the definition of “same or similar” prevents many workers from changing employers, seeking new opportunities, or accepting promotions for fear that their actions will impact their lawful permanent resident process. To eliminate the uncertainty, guidance will be issued defining “same or similar.” The guidance will state that a worker can accept a promotion to a supervisory position or otherwise transition to related jobs in his field.

Clarification on National Interest Waivers: National Interest Waivers allow foreign nationals with advanced degrees or exceptional ability to seek lawful permanent resident status without obtaining PERM labor certification, if they will serve the national interest. DHS will clarify the standard by which National Interest Waivers may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the United States economy through job creation, attracting investment and generating revenue in the United States.

Parole Status for Foreign Entrepreneurs: DHS will propose a program to grant status, on a case-by-case basis, to inventors, researchers and founders of start-up enterprises who may not yet qualify for a National Interest Waiver but who have been awarded substantial United States investor funding or otherwise hold the promise of innovation and job creation to temporarily pursue research and development of promising ideas and business in the United States rather than abroad.

How do President Obama's actions impact other areas of immigration?

President Obama’s actions will also impact other areas of immigration significantly. These changes include the following:

Prioritized Enforcement Actions: The government will prioritize who gets removed from the United States by focusing on removing individuals who are suspected terrorists, violent criminals, gang members and recent unlawful border crossers.

Deferred Action for Parental Accountability (DAPA): Undocumented parents of United States citizens and lawful permanent residents who have been continuously present in the United States since January 1, 2010 and who pass background checks and pay taxes will be eligible for deferred action that grants them employment authorization and the right to remain in the United States without threat of removal. DHS anticipates that it will begin accepting applications for this benefit within 180 days.

Expansion of Deferred Action for Childhood Arrivals (DACA): Certain individuals who came to the United States as children and meet several criteria are eligible for deferred action that grants them employment authorization and the right to remain in the United States without threat of removal. DHS will grant DACA for three years at a time instead of two years; DACA will be expanded to individuals who resided in the United States continuously since January 1, 2010 instead of June 15, 2007; and DACA will be revised to eliminate the age cap that limits relief to those under 31 years of age. DHS anticipates that these changes will begin within 90 days.

Expansion of I-601a Waivers: United States citizens and lawful permanent residents are often separated from their immediate relatives for years while these relatives wait to obtain lawful permanent resident status. To reduce the time these families are separated, DHS will expand an existing program that enables certain individuals to apply for a provisional waiver before they depart from the United States to attend a visa interview. The program will now include spouses, sons and daughters of lawful permanent residents and sons and daughters of United States citizens. DHS will also clarify the meaning of the “extreme hardship” standards that must be met to obtain a waiver.

Border Security Measures: DHS will announce a command and control campaign on the southern border to coordinate and better utilize resources.

Ensuring Individuals Can Travel: DHS will clarify its guidance to provide greater assurance on Advance Parole for individuals with certain temporary statuses.

When can my employees apply for these benefits and what will happen next?

Before any employees can benefit from the executive actions, the United States government needs to define, finalize and implement the changes. In some cases, this will involve lengthy rulemaking processes. The government will implement some changes over the next several months, while other changes will take longer. The Obama administration is working on the specific details required to implement these actions and is expected to release further details in the coming weeks and months. Meanwhile, Republicans have vowed to prevent these actions from taking effect. President Obama has stated that he will continue to work with Congress to pass comprehensive immigration reform that would replace his executive actions on immigration.

Where can I find additional information about these actions?

Additional information regarding President Obama’s executive actions will be available at www.whitehouse.gov and www.uscis.gov in the coming weeks. If you have questions regarding the information in this alert or other business immigration matters, please contact a member of our Business Immigration Practice Group. If you have questions regarding how these actions will impact your company’s employment policies, please contact one of our Labor and Employment attorneys.